United States v. Samuel Volpendesto , 755 F.3d 448 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11-3020
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMUEL VOLPENDESTO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 115-2 — Ronald A. Guzmán, Judge.
____________________
ARGUED DECEMBER 11, 2013 — DECIDED JUNE 6, 2014
____________________
Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit
Judges.
WOOD, Chief Judge. Samuel Volpendesto’s career in orga-
nized crime finally caught up to him at the age of 87. Wheel-
chair-bound and in poor health, he heard the jury return
guilty verdicts against him on four counts: racketeering con-
spiracy, conspiracy to commit arson, arson, and use of a de-
structive device in relation to a crime of violence. The district
court sentenced Volpendesto to prison, entered a forfeiture
2 No. 11-3020
judgment, and ordered him to pay $547,597 in criminal resti-
tution to the victims of his crimes.
Volpendesto appealed, but he died before we could hear
his case. The difficult question we confront, which has di-
vided our sister circuits, is whether a restitution order that is
part of a criminal judgment survives when the defendant
dies before his appeal can be resolved. We conclude that
Volpendesto’s death mooted his case and thus the criminal
restitution order abates along with everything else covered
by the judgment.
I
Volpendesto was the elder statesman of an organized
crime operation in West Chicago. His organization, led by
Michael Sarno, made money through illegal gambling and
jewelry store robberies. He was tried along with four code-
fendants, including his son Anthony Volpendesto, on a four-
count indictment. The jury convicted him on all counts. The
details of the gang’s crimes are discussed in our opinion re-
solving the codefendants’ appeals. See United States v. Vol-
pendesto et al., 746 F.3d 273 (7th Cir. 2014). Here we mention
only the facts that are essential for the present appeal.
To maintain its territorial control over illegal gambling,
the enterprise once detonated a bomb at a competitor’s busi-
ness, causing losses for the building’s owner Richard Slejza
and his insurer. The district court found that Volpendesto
owed $46,124 to Slejza and the insurer in restitution for this
crime. The enterprise’s exploits also included heists from
Ram Creations jewelry store in Novi, Michigan, and Lenna
Jewelers in Hinsdale, Illinois. Volpendesto acted as the get-
away driver for these robberies, both of which also led to
No. 11-3020 3
restitution orders: $256,721 for Ram Creations’ owner Nar-
ender Agarwal and his insurer, and $244,752 for the owner
of Lenna Jewelers, Lynne Friedman, and her insurer. These
three items resulted in a total restitution obligation of
$547,597, on which Volpendesto was required to make
“monthly payments of a minimum of ten percent of his net
monthly income as directed by the Probation Office.”
In addition to the restitution order, the district court also
imposed an order of forfeiture in the amount of $1,878,172 in
favor of the United States. The forfeiture order authorized
the United States to take over a residential property, all
funds in Volpendesto’s name, and any other assets that
might become available in the future to satisfy the forfeiture
judgment. Pursuant to 18 U.S.C. § 1963(l)(1), the order pro-
vided that any person (other than Volpendesto) claiming an
interest in the seized property could petition the court with-
in thirty days of notice by publication to adjudicate the va-
lidity of his or her alleged interest. Parties failing to file with-
in thirty days were forever barred from asserting a claim.
Following disposition of all alleged interests in seized prop-
erty, the court’s final order of forfeiture vested clear title in
the government.
We severed Volpendesto’s appeal from those of his code-
fendants upon his death and asked Volpendesto’s trial attor-
ney to represent his interests in this appeal.
II
The government’s brief opens with a challenge to our ap-
pellate jurisdiction, and so we must begin there. The gov-
ernment contends that neither Volpendesto’s trial attorney
nor Volpendesto’s estate has Article III standing to bring this
4 No. 11-3020
appeal. It reasons that only Volpendesto himself would have
had standing to challenge his criminal conviction and sen-
tence, and he is gone. That leaves no one, the government
concludes, who is entitled under Article III to pursue this
appeal. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). We are entitled to resolve this question, because we
always have jurisdiction to review our own jurisdiction. Mu-
ratoski v. Holder, 622 F.3d 824, 829 (7th Cir. 2010).
We find it peculiar to hear this argument from a party
that seeks to preserve part of the district court’s judgment.
Congress provided an appeal of right from judgments in
criminal cases. See 18 U.S.C. § 3742; 28 U.S.C. § 1291. Given
that fact, we do not see how the district court could impose a
restitution order that is immune from challenge by the party
that would have to satisfy it. Due process demands no less.
Moreover, if Volpendesto’s obligation to make restitution can
be imposed on the estate, there is no conventional problem
with the estate’s standing. The estate’s injury (a $547,597 lia-
bility) is directly traceable to the government’s conduct (ob-
taining the restitution order) and can be remedied by this
court through an order of vacatur. See Lujan, 504 U.S. at 560–
61. See also Lexmark Intern., Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377, 1386 (2014) (disapproving the use of the
“prudential standing” rubric and emphasizing the obligation
of federal courts to hear and decide cases within their Article
III jurisdiction).
A contrary ruling would be troublesome. If no one has
standing to contest the order, then no one should be bound
by it. See Hollingsworth v. Barbour, 29 U.S. 466, 475 (1830) (“It
is an acknowledged general principle that judgments and
decrees are binding only upon parties and privies. The rea-
No. 11-3020 5
son of the rule is founded in the immutable principle of nat-
ural justice, that no man’s right should be prejudiced by the
judgment or decree of a court, without an opportunity of de-
fending the right.”) (quotation marks omitted). And if no
one is bound by the restitution order, then it does not remain
in force in any meaningful way.
The question remains under what authority we may con-
sider whether the restitution order abates on death. Courts
that find restitution orders survive the defendant’s death al-
so find that the defendant’s estate has standing to contest
them. E.g. United States v. Mmahat, 106 F.3d 89, 93 (5th Cir.
1997) (“Because the restitution order survives … we grant
the motion for [the defendant’s] heirs to continue the appeal
in his stead.”), rev’d by United States v. Estate of Parsons, 367
F.3d 409 (5th Cir. 2004) (en banc); United States v. Christopher,
273 F.3d 294, 299 (3d Cir. 2001) (restitution order “survives
against the estate of the deceased convict”). Courts finding
that restitution orders abate allow the defendant’s attorney
to present the issue on appeal without involving the defend-
ant’s estate. E.g., United States v. Rich, 603 F.3d 722, 724 n.4
(9th Cir. 2010) (“The government implies that Rich’s attor-
neys cannot raise this argument without substitution of the
estate, but substitution is not required.”).
After oral argument, the government referred us to sev-
eral cases standing for the proposition that victims as “non-
parties cannot directly appeal a restitution order entered
against a criminal defendant.” See United States v. Fast, 709
F.3d 712, 715 (8th Cir. 2013) (citing ten courts of appeals), va-
cated and remanded on other grounds sub nom. Vicky v. Fast, 572
U.S. ___, No. 13-69 (Apr. 28, 2014). But see United States v.
Laraneta, 700 F.3d 983, 986 (7th Cir. 2012) (distinguishing
6 No. 11-3020
joinder of victims as parties in district court and victim in-
tervention in appellate proceedings). These cases cut both
ways. On the one hand, they are of limited utility here, be-
cause they involve victims. Victims lack standing because
“allowing victims to appeal would erode the [restitution
statute]’s attempt to preserve the [g]overnment’s discretion.”
Fast, 709 F.3d at 716 (quotation marks omitted); Laraneta, 700
F.3d at 985–86. The government’s prosecutorial discretion is
not affected if the estate steps into the shoes of the deceased
defendant. Rather, the estate becomes the adversarial entity
from which the government seeks to compel payment on the
order of restitution. See Christopher, 273 F.3d at 299; Taylor v.
Sturgell, 553 U.S. 880, 894 (2008) (nonparty preclusion may
obtain for succeeding owners of property). On the other
hand, a straightforward application of the rule that nonpar-
ties are not entitled to take a direct appeal of a restitution
order suggests that the estate is barred from defending its
own interests in this court.
In our view, the government is making this more compli-
cated than it needs to be. Volpendesto’s death does not make
it necessary to drag the estate into this case. In this connec-
tion, it is important not to conflate two points: (1) whether
the appeal is indeed moot; and (2) if yes, then what should
happen to the order of restitution. The government has dis-
cussed this issue in terms of standing, but that is not accu-
rate. As we held in Parvati Corp. v. City of Oak Forest, 630 F.3d
512 (7th Cir. 2010), “[w]hen a party with standing at the in-
ception of the litigation loses it due to intervening events, the
inquiry is really one of mootness.” Id. at 516. Volpendesto’s
death has deprived us of the power to decide the merits, but
it does not defeat our authority to resolve the appeal in re-
sponse to the mootness of the underlying case. See Charles
No. 11-3020 7
Alan Wright & Arthur Miller, 13C FED. PRAC. & PROC. JURIS.
§ 3533.10 (3d ed. 2014). For assistance in resolving that issue,
we asked Volpendesto’s trial attorney to file a brief discuss-
ing it. Cf. FED. R. APP. P. 29 (amicus briefs), 43 (substitution of
parties). He has done so, and we appreciate his efforts. Hav-
ing assured ourselves that we do have authority to wrap up
this appeal, we now turn to the central question.
III
The doctrine of abatement provides that “death pending
direct review of a criminal conviction abates not only the
appeal but also all proceedings had in the prosecution from
its inception.” Durham v. United States, 401 U.S. 481, 483
(1971); see United States v. Moehlenkamp, 557 F.2d 126, 128
(7th Cir. 1977). This principle applies only while appeals of
right are pending; the Supreme Court draws the line at peti-
tions for a writ of certiorari, which are simply dismissed up-
on the death of a petitioner. Dove v. United States, 423 U.S.
325, 325 (1976) (per curiam). As the Court wrote in U.S. Ban-
corp Mortg. Co. v. Bonner Mall P’ship, “vacatur must be de-
creed for those judgments whose review is … prevented
through happenstance—that is to say, where a controversy
presented for review has become moot due to circumstances
unattributable to any of the parties.” 513 U.S. 18, 23 (1994)
(citation and quotation marks omitted.)
We and our sister circuits have recognized that death of a
criminal defendant before appeal causes the case to become
moot. Because mootness occurs before the conviction can fi-
nally be confirmed, “the longstanding and unanimous view
of the lower federal courts [is] that the death of an appellant
during the pendency of his appeal of right from a criminal
conviction abates the entire course of the proceedings
8 No. 11-3020
brought against him.” Moehlenkamp, 557 F.2d at 128; United
States v. Zizzo, 120 F.3d 1338, 1346 (7th Cir. 1997) (following
Moehlenkamp); see also United States v. DeMichael, 461 F.3d
414, 417 (3d Cir. 2006) (recognizing general rule of abatement
but declining to apply it where defendant’s appeal chal-
lenged only his fine, not his conviction; court abated the fi-
ne); Logal, 106 F.3d at 1551–52 (vacating conviction and resti-
tution order in light of defendant’s suicide); United States v.
Oberlin, 718 F.2d 894, 895–96 (9th Cir. 1983) (death abates all
aspects of “the prosecution ab initio,” including forfeiture
judgment).
The rationale for the abatement doctrine is that “the in-
terests of justice ordinarily require that [a criminal defend-
ant] not stand convicted without resolution of the merits of
his appeal, which is an ‘integral part of our system for finally
adjudicating his guilt or innocence.’” Moehlenkamp, 557 F.2d
at 128 (quoting Griffin v. Illinois, 351 U.S. 12, 18 (1956)); Par-
sons, 367 F.3d at 415 (“The primary justification for the
abatement doctrine arguably is that it prevents a wrongly-
accused defendant from standing convicted.”). The doctrine
rests on the idea “that the state should not label one as guilty
until he has exhausted his opportunity to appeal.” Id. at 413.
Although the abatement rule does not have a constitutional
basis, it has been adopted almost unanimously by the federal
courts, and many state courts also follow it. Id. at 413 n.7 (cit-
ing cases from several U.S. courts of appeals); United States v.
Pauline, 625 F.2d 684, 685 n.5 (5th Cir. 1980) (citing state cas-
es). But see State v. Carlin, 249 P.3d 752, 762–63 (Alaska 2011)
(recognizing that plurality of states follow abatement rule
but disapproving it for Alaska); State v. McDonald, 424
N.W.2d 411, 413–14 (Wis. 1988) (declining abatement and al-
lowing appeal to proceed after defendant’s death).
No. 11-3020 9
Views among federal courts differ, however, on the ques-
tion whether criminal restitution orders are subject to the
rule of abatement. Compare Parsons, 367 F.3d at 415 (finding
restitution order abates on criminal’s death pending appeal);
Rich, 603 F.3d at 729 (same); Logal, 106 F.3d at 1552 (same);
with Christopher, 273 F.3d at 299 (finding restitution order
does not abate); United States v. Dudley, 739 F.2d 175, 178 (4th
Cir. 1984) (same); United States v. Johnson, Nos. 91-3287, 91-
3382, 1991 WL 131892 at *1 (6th Cir. July 18, 1991) (un-
published) (same). Those that view restitution as an excep-
tion to the rule of abatement reason that restitution is in-
tended to compensate victims much like a civil judgment;
they do not see restitution as part of the offender’s punish-
ment. See Christopher, 273 F.3d at 298 (“The question whether
an order of restitution should abate depends essentially on
its categorization as penal or compensatory.”).
The problem is that restitution is neither fish nor fowl. It
is instead a “procedural innovation” that “enables the tort
victim to recover his damages in a summary proceeding an-
cillary to a criminal prosecution.” United States v. Bach, 172
F.3d 520, 523 (7th Cir. 1999); see also United States v. Newman,
144 F.3d 531, 538–39 (7th Cir. 1998) (“Restitution is not ‘pun-
ishment’ within the meaning of the Ex Post Facto Clause.”)
(quotation marks omitted). Volpendesto was subject to the
provisions of the Mandatory Victim Restitution Act, 18
U.S.C. § 3663A. That statute provides that for “a defendant
convicted of an offense described in subsection (c) [which
includes a crime of violence], the court shall order … in ad-
dition to or in lieu of any other penalty authorized by law,
that the defendant make restitution to the victim of the of-
fense.” § 3663A(a)(1) (emphasis added). Restitution ordered
under this authority, we believe, cannot be disentangled
10 No. 11-3020
from the criminal conviction that underlies the sentence. (We
note that restitution may be ordered in certain civil cases,
such as proceedings under a consumer-protection statute.
See Matter of Towers, 162 F.3d 952 (7th Cir. 1998). Nothing we
say here should be taken as a comment on that very different
situation.)
The rule of abatement terminates criminal proceedings ab
initio, “vacating the conviction entered against [the defend-
ant].” Moehlenkamp, 557 F.2d at 128; Logal, 106 F.3d at 1552
(“Under the doctrine of abatement ab initio … the defendant
stands as if he never had been indicted or convicted. The ab-
sence of a conviction precludes imposition of the restitution
order against [defendant] or his estate pursuant to § 3663.”)
(citation and quotation marks omitted). The fact that crimi-
nal restitution serves a compensatory purpose does not ena-
ble it to be imposed in the absence of a final conviction.
The government objects that abatement of the restitution
order unfairly rewards the estate at the expense of victims.
See Christopher, 273 F.3d at 299 (“To absolve the estate from
refunding the fruits of the wrongdoing would grant an un-
deserved windfall.”). That is one way of looking at things,
but it does not change the result. If we are considering prac-
tical effects, it is worth noting that most, if not all, of the as-
sets in Volpendesto’s estate were seized pursuant to the for-
feiture order, which vested clear and irrevocable title in the
government. See Parsons, 367 F.3d at 417–18 (finding restitu-
tion order abates but refusing to require government to re-
turn money paid prior to the defendant’s death pursuant to
forfeiture judgment). The government’s seizure of Vol-
pendesto’s assets left almost nothing for either victims or the
estate to recover.
No. 11-3020 11
Moreover, the victims are free to sue the estate. “Alt-
hough it is not without a cost, requiring victims to argue
their case in civil court protects the interests of defendants
whose direct appeals are not yet final.” Parsons, 367 F.3d at
416 n.17; Logal, 106 F.3d at 1552 (“[N]othing precludes the
victims from bringing a separate civil action to prevent any
improper benefit to [defendant]’s estate.”). Indeed, there is
nothing to prevent victims from bringing civil actions even
before the trial is over, and they might wish to do so in order
to avoid any possible trouble with the statute of limitations.
The fact that victims lack standing to challenge restitution
orders in criminal proceedings in no way undermines their
right to use civil proceedings to vindicate their legal rights
after the defendant’s death.
IV
We conclude that Volpendesto’s death before his appeal
was resolved caused his criminal conviction to abate. With-
out a final criminal conviction, there can be no order of resti-
tution under 18 U.S.C. § 3556. The district court’s judgment
is VACATED and the case is DISMISSED as moot.
12 No. 11-3020
SYKES, Circuit Judge, concurring. As my colleagues explain,
the doctrine of abatement holds that when a criminal defen-
dant dies during the pendency of his direct appeal, the entire
criminal proceeding is extinguished ab initio, so that in the eyes
of the law, it is as if he had never been indicted or convicted.
See United States v. Moehlenkamp, 557 F.2d 126, 127–28 (7th Cir.
1977). This judge-made rule is usually explained in terms of
fairness or lack of finality or both. See id.; see also United States
v. Rich, 603 F.3d 722, 729 (9th Cir. 2010); United States v. Estate
of Parsons, 367 F.3d 409, 413–14 (5th Cir. 2004) (en banc); United
States v. Christopher, 273 F.3d 294, 296–97 (3d Cir. 2001); United
States v. Logal, 106 F.3d 1547, 1551–52 (11th Cir. 1997); United
States v. Dudley, 739 F.2d 175, 176–78 (4th Cir. 1984). I question
whether the reasons for the abatement rule hold up under
close scrutiny. An unreviewed criminal conviction is neither
suspect nor lacking in finality in any relevant sense, and I do
not think it unfair to let a criminal judgment stand if the
defendant dies while his appeal is pending.
But we’re not asked to reconsider and abolish the abate-
ment doctrine here. The government argues instead that
restitution orders should be exempt from it. As my colleagues
explain, however, “[w]ithout a final criminal conviction, there
can be no order of restitution under 18 U.S.C. § 3556.” Majority
Op. p. 11. In an appropriate case, we should consider whether
the abatement doctrine is justified or should be abrogated.
Because that question has not been briefed here, I agree with
my colleagues that the district court’s judgment must be
vacated and the case dismissed.